On October 7, 2020, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) released Frequently Asked Questions under the recent Executive Order 13950 regarding diversity and inclusion programs for federal contractors.  That order, among other things, instructs government contracting agencies to add provisions to government contracts prohibiting the use of any workplace training “that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.”  The order lists a number of prohibited concepts—most of which are not commonly emphasized in workplace diversity training programs but some of which are at least related to concepts of implicit bias or the history of systemic racism—that may be included in such programs. 

The new FAQs offer limited additional guidance to federal contractors.  First, it communicates OFCCP’s apparent opinion that the full scope of the order will apply to contracts entered into on or after November 21, 2020.  As discussed in our prior Insight, there is actually some question as to whether the order can be incorporated into federal contracts prior to the satisfaction of several statutory requirements that could take some time for the government to fulfill.

That said, OFCCP makes it clear that it may immediately begin to investigate “claims of sex and race stereotyping” pursuant to its existing authority under Executive Order 11246 (which, in addition to setting out affirmative action requirements for federal contractors, requires contractors and subcontractors to treat employees without regard to their race or sex, among other protected bases).

The FAQs set forth the definition of “race or sex stereotyping” under Executive Order 13950 as “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to an entire race or sex, or to individuals because of their race or sex.”  It defines “race or sex scapegoating” as “assigning fault, blame, or bias to a race or sex, or to members of a race or sex, because of their race or sex” and further notes that scapegoating includes “any claim that, consciously or unconsciously, and by virtue of their race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”

The FAQs provide several examples of specific concepts that would be prohibited in contractor training programs, including concepts that:

• One race or sex is inherently superior to another race or sex;
• An individual, by virtue of their race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
• An individual should be discriminated against or receive adverse treatment solely or partly because of their race or sex;
• Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
• An individual’s moral character is necessarily determined by their race or sex;
• An individual, by virtue of their race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
• Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of their race or sex; or
• Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

The FAQs note that unconscious or implicit bias training is not per se prohibited under the order.  For example, training is not prohibited if it is designed to inform workers, or foster discussion, about preconceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.  Training is prohibited, however, to the extent it teaches or implies that an individual, by virtue of their race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously. 

As a practical matter, federal contractors that provide diversity and inclusion training to their employees—either internally or by use of outside vendors—should consider reviewing their materials and training to ensure that they do not inadvertently violate the order.  For many, their training may already be compliant.  Broad-based non-discrimination and anti-harassment trainings are likely to be permissible within the order.  To the extent, however, that training raises issues of implicit or unconscious bias, theories of structural racism, or the like, employers will want to make sure that they do so in a way that does not violate the order.  In some instances, it may be simply a matter of ensuring that material around these topics is presented in an even-handed and non-discriminatory matter.

Additional Information.  The FAQs state that complaints under the authority of Executive Order 11246 will be investigated immediately, following the agency’s standard procedures, and that OFCCP will enforce the full order once it becomes effective in federal contracts.  Contractors found in violation may have their contracts canceled, terminated, or suspended in whole or in part, or potentially be disbarred. 

Finally, the FAQs note that the DOL is currently drafting a Request for Information (RFI) that will seek information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding their training, workshops, or similar programming provided to employees that may be in violation of Executive Orders 11246 or 13950.  It is expected that the RFI will be issued before October 22, 2020.

Littler WPI will continue to advise if and when additional guidance is given to contractors.